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Anderson v. Par Electrical Contractors, Inc.

United States District Court, D. Kansas

March 10, 2017

THOMAS ANDERSON, Plaintiff,
v.
PAR ELECTRICAL CONTRACTORS, INC., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER United States Magistrate Judge

         This matter is before the Court on Plaintiff’s Motion to Amend his Complaint (ECF No. 13). For the reasons set forth below, Plaintiff’s motion is GRANTED.

         I. Background [1]

         A. Nature of the Case

         On August 18, 2014, plaintiff Thomas Anderson was working as an employee for defendant PAR Electrical Contractors, Inc. (“PAR”) when he was injured by an electrical shock from an overhead power line. Plaintiff claims that at the time of the accident, he was observing company polices and being supervised by PAR’s foreman. The cause of the shock is unknown, but as a result of the accident, Plaintiff suffered severe injuries. Nine days after his injury, PAR terminated Plaintiff’s employment, contending he failed to follow unspecified safety rules.

         B. Procedural Posture

         Plaintiff filed a lawsuit against PAR on August 3, 2016, in the Douglas County District Court to recover damages, claiming PAR was strictly liable and/or its negligence caused his injuries. Defendant removed the case to this Court on October 28, 2016 (ECF No. 1) and filed its Answer to the Petition (ECF No. 6). However, prior to the Fed. R. Civ. P. 16 scheduling conference, Defendant filed a Motion for Summary Judgment (ECF No. 8) and discovery was stayed pending resolution of the dispositive motion (ECF No. 14). In its dispositive motion, Defendant contends Plaintiff’s sole remedy is a claim for workers compensation benefits, and therefore PAR is immune from civil liability under the Kansas Workers Compensation laws. Soon after Defendant filed its dispositive motion, Plaintiff filed his Motion to Amend the Complaint (ECF No. 13), seeking to add a claim for retaliatory discharge arising out of the same accident on August 18, 2014.

         Following the filing of both motions, U.S. District Judge Carlos Murguia denied the motion for summary judgment without prejudice and without considering the merits of the motion pending resolution of the motion to amend (Order, ECF No. 18). Defendant opposes the amendment (ECF No. 15), all related briefing is complete, and the issue is now ripe for decision.

         II. Motion to Amend (ECF No. 13)

         A. Legal Standard for Amendment

         The standard for permitting a party to amend his or her complaint is well established. A party may amend its pleading as a matter of course under Fed. R. Civ. P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party’s consent a party may amend his pleading only by leave of the court under Rule 15(a)(2).

         Rule 15(a)(2) provides leave “shall be freely given when justice so requires,” and the decision to allow an amendment is within the sound discretion of the court.[2] The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.[3]In exercising its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities.”[4]The Tenth Circuit acknowledged that Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.’”[5]

         B. Discussion

         Plaintiff seeks to add a wrongful discharge claim to his Complaint based upon his termination of employment on August 27, 2014-only nine days after his accident. He claims although he was terminated for violating unspecified safety rules, Defendant’s reasoning was pretext. He claims he was actually terminated due to his injury and impending workers compensation claim. Plaintiff argues the addition of the claim would not cause undue prejudice to Defendant because no discovery has occurred.

         Of the factors analyzed by the Court when considering amendment, Defendant opposes Plaintiff’s amendment on two grounds: first, on the on the basis of futility; and second, on the basis of untimeliness. Defendant first argues Plaintiff’s claim for wrongful discharge is barred by the two-year statute of limitations in K.S.A. § 60-513, and may not “relate back” under Fed. R. Civ. P. 15(c)(1)(B). Defendant also generally contends Plaintiff was “well aware” of his termination at the filing of his original Petition, and has made no showing why the wrongful termination claim was not included earlier. Plaintiff disputes the futility claim, and argues Defendant would suffer no prejudice by the addition of the termination claim. Each argument raised by the parties is addressed in turn.

         1. Futility

         As the party opposing amendment, Defendant bears the burden of establishing its futility.[6] “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”[7] The proposed pleading is then analyzed using the same standard as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). When utilizing this standard, “the court must accept as true all well-pleaded factual allegations and view them in the light most favorable to the pleading party.”[8] Only if the court finds “the proposed claims do not contain enough facts to state a claim for relief that are plausible on their face or the claims otherwise fail as a matter of law”[9] should the court find the amendment futile. Some courts in the District of Kansas have analyzed statute of limitations issues when determining futility of amendment.[10]

         Defendant argues Plaintiff’s proposed amendment is futile because the relevant statute of limitations, K.S.A. § 60-513, bars Plaintiff’s wrongful termination claim. The statute requires an action for “injury to the rights of another” to be filed within two years of the date of injury.[11] Plaintiff’s employment was terminated on August 27, 2014, and because his motion to amend the Complaint was not filed until December 19, 2016, Defendant argues the limitations period for the employment claim had expired. However, Defendant specifically recognizes that under Fed. R. Civ. P. 15(c)(1)(B), an amendment may relate back to the date of the original pleading.[12]

         The “relation back” clause of Rule 15(c)(1) provides that “[a]n amendment to a pleading relates back to the date of the original pleading when: . . . (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.”[13] This provision is intended to give the defendant “fair notice that the litigation is arising out of a specific factual situation.”[14] An amended pleading does not relate back to a previous pleading unless the earlier pleading fairly gave the defendant notice of the later-asserted claim.[15] “When an amendment is based on different facts, transactions, and occurrences, a claim in an amended pleading will not relate back.”[16]

         In its brief analysis of Rule 15’s “relation back” clause, Defendant contends it is inapplicable to Plaintiff’s termination claim. Defendant argues the termination claim is based on a different legal theory from the one claimed in Plaintiff’s original Petition, and arises from a separate set of circumstances occurring on a different date. Defendant cites no authority for its position.

         Plaintiff does not dispute the applicable limitations period, but contends his termination claim stems from the same set of facts as his negligence claim: his on-the-job injury. Had Plaintiff not been injured, neither his damages claim nor his termination claim would have occurred. Plaintiff provides excerpts from PAR’s corporate claims manager’s deposition in the workers compensation case to support his theory that Defendant terminated him in order to obtain an “OSHA override” and keep the injury from affecting the company’s safety ratings with its employers. (Pl.’s Reply, ECF No. 17, at 4, Ex.1.)

         To support his request for amendment, Plaintiff cites to distinguishable but persuasive authority from the Tenth Circuit Court of Appeals. In Williams v. Imhoff,[17]the court interpreted “arising out of” in the context of the NASD[18] Arbitration Code when deciding whether the terminated securities exchange employees’ claims were subject to mandatory arbitration. In Williams, among multiple questions before the court was the issue of whether the employees’ ERISA[19] claims “arose out of” their employment or termination, as required for their claims to be subject to mandatory arbitration.[20] The Circuit found the phrase “arising out of” “must be broadly construed to mean ‘originating from,’ ‘growing out of,’ or ‘flowing from.’”[21] One case cited by the Circuit explained the phrase “arising out of” simply “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.”[22]While collecting other cases from various courts and secondary sources, ...


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